B-125772, JAN. 30, 1956

B-125772, JAN. 30, 1956

TO BOSS LINCO LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 17, 1955, REQUESTING RECONSIDERATION OF THE DECISION OF NOVEMBER 14, 1955, B-125772. THIS DECISION SUSTAINED THE SETTLEMENT DATED OCTOBER 19, 1954, WHICH DISALLOWED YOUR SUPPLEMENTAL BILL FOR $61.31 ADDITIONAL TO THE AMOUNT PREVIOUSLY PAID FOR THE TRANSPORTATION OF A SHIPMENT OF INTERNAL COMBUSTION ENGINES FROM BROOKLEY, ALABAMA, TO SYRACUSE, NEW YORK, UNDER GOVERNMENT BILL OF LADING NO. WV-2648114, DATED DECEMBER 28, 1951.

THE RECORD SHOWS THAT THE SHIPMENT WAS TENDERED TO THE ATLANTA-NEW ORLEANS MOTOR FREIGHT COMPANY AT BROOKLEY ON DECEMBER 28, 1951, WITH INSTRUCTIONS TO FORWARD IT TO SYRACUSE VIA "ATLANTA NEW ORLEANS MTR FRT CO/ASSOCIATED.' THE SHIPMENT WAS DELIVERED TO THE CONSIGNEE AT SYRACUSE BY BOSS LINCO LINES, INC. THE DELIVERING CARRIER CLAIMED AND WAS PAID FOR THIS SERVICE, $161.48, WHICH WAS COMPUTED ON THE BASIS OF A SECOND-CLASS RATE OF $3.24 PER 100 POUNDS. THEREAFTER, THE DELIVERING CARRIER CLAIMED AN ADDITIONAL ALLOWANCE OF $61.31 AND ITS CLAIM WAS DISALLOWED BY THE SETTLEMENT OF OCTOBER 19, 1954. YOU ALLEGE THAT BOSS LINCO LINES, INC., DOES NOT PARTICIPATE IN THE RATE OF $3.24 PER 100 POUNDS, AND THAT THE LOWEST APPLICABLE CHARGE VIA THE ACTUAL ROUTE OF MOVEMENT IS BASED ON A COMBINATION OF RATES WHICH PRODUCES CHARGES $61.1 IN EXCESS OF THOSE PREVIOUSLY PAID.

THE SHIPMENT WAS TENDERED TO THE INITIAL CARRIER WITH INSTRUCTIONS TO FORWARD IT TO DESTINATION OVER A ROUTE COMPOSED OF THE LINES OF THE ATLANTA-NEW ORLEANS MOTOR FREIGHT COMPANY AND THE ASSOCIATED TRANSPORT COMPANY. THIS ROUTE WAS COMPLETE IN ITSELF AND THE PARTICIPATION OF AN ADDITIONAL CARRIER--- BOSS LINCO LINES, INC.--- WAS NOT REQUIRED. THE JOINT THROUGH RATE OF $3.24 PER 100 POUNDS WAS PUBLISHED IN SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 4-G, MF-I.C.C. NO. 514, AND APPLIED FROM BROOKLEY TO SYRACUSE OVER THE LINES OF THE ATLANTA-NEW ORLEANS MOTOR FREIGHT COMPANY TO ATLANTA, GEORGIA, AND THE ASSOCIATED TRANSPORT COMPANY TO SYRACUSE, NEW YORK, THE JOINT-LINE ROUTE VIA THESE CARRIERS BEING AUTHORIZED BY ITEM 560 OF SOUTHERN MOTOR CARRIERS RATE CONFERENCE TARIFF NO. 151-D, MF-I.C.C. NO. 526. THUS, HAD THE CARRIERS NAMED IN THE BILL OF LADING TRANSPORTED THE SHIPMENT AS INSTRUCTED, THERE WOULD HAVE BEEN NO QUESTION AS TO THE APPLICABILITY OF THE RATE OF $3.24 PER 100 POUNDS TO THE SHIPMENT HERE CONCERNED.

THE INTERSTATE COMMERCE ACT DOES NOT SPECIFICALLY AUTHORIZE A SHIPPER TO SPECIFY THE ROUTING OF HIS SHIPMENTS OVER THE LINES OF COMMON CARRIERS BY MOTOR VEHICLE, BUT IT DOES MAKE IT THE DUTY OF SUCH CARRIERS TO ESTABLISH, OBSERVE, AND ENFORCE JUST AND REASONABLE RATES, CHARGES, AND CLASSIFICATIONS, AND REASONABLE REGULATIONS AND PRACTICES RELATING THERETO. EVEN IN CASES IN WHICH NO ROUTING INSTRUCTIONS ARE GIVEN TO THE CARRIER, IT SHOULD SELECT THE ROUTE WHICH IS THE LEAST EXPENSIVE FOR THE SHIPPER, AND WHILE MOTOR CARRIERS ARE NOT COMPELLED TO ESTABLISH JOINT RATES OR ROUTES, WHERE THEY DO MAINTAIN THROUGH ROUTES WITH OTHER CARRIERS IT IS THE DUTY OF THE INITIAL CARRIER TO FORWARD A SHIPMENT OVER THE LOWEST-RATED ROUTE. HAUSMAN STEEL COMPANY V. SEABOARD FREIGHT LINES, INC., 32 M.C.C. 31, 34, 36; METZNER STOVE REPAIR COMPANY V. RANFT, 47 M.C.C. 151; MURRAY COMPANY OF TEXAS, INC., V. MORROW, INC., 54 M.C.C. 442; GREAT A. AND P. TEA COMPANY V. ONTARIO FREIGHT LINES, 46 M.C.C. 237. THUS, IF THE CARRIERS HAD FOLLOWED THE SHIPPER'S ROUTING INSTRUCTIONS IN THIS CASE THE ROUTE OF MOVEMENT WOULD HAVE BEEN THAT OVER WHICH THE JOINT- LINE RATE OF $3.24 PER 100 POUNDS APPLIED. HOWEVER, SINCE THE CARRIERS CHOSE TO DISREGARD TO IGNORE THE SHIPPER'S ROUTING INSTRUCTIONS AND TREAT THE SHIPMENT AS UNROUTED, THEY WERE UNDER A DUTY TO TRANSPORT THE SHIPMENT OVER THE LOWEST-RATED ROUTE. HAD THEY PERFORMED THEIR DUTY IN THIS RESPECT, THE RATE OF $3.24 PER 100 POUNDS APPARENTLY WOULD HAVE BEEN APPLICABLE.

IN THE PRESENT CASE, THE INITIAL CARRIER ACCEPTED THE SHIPMENT ROUTED BY THE SHIPPER VIA A PARTICULAR JOINT-LINE ROUTE WITHOUT PROTEST, AND WITHOUT GIVING ANY INDICATION OF INABILITY TO COMPLY WITH THE ROUTING INSTRUCTIONS. THE INTERSTATE COMMERCE COMMISSION HAS SAID IN A SOMEWHAT SIMILAR CASE THAT "DESPITE THE LACK OF ANY PROVISION IN PART II OF THE ACT AUTHORIZING A SHIPPER TO SPECIFY ROUTING, IT CLEARLY WOULD BE UNREASONABLE FOR A MOTOR COMMON CARRIER WHICH HAS ACCEPTED A SHIPMENT ROUTED BY A SHIPPER UNDER A JOINT RATE, BUT IS UNABLE TO COMPLY WITH THE ROUTING SPECIFIED, NOT TO SEEK FURTHER INSTRUCTIONS RESPECTING THE REROUTING OF THE SHIPMENT * * *.' EASTERN AIRCRAFT V. FRED OLSON AND SON MOTOR SERVICE COMPANY, 47 M.C.C. 363, 368-369. THUS, EVEN IF THEY WERE UNABLE TO COMPLY WITH THE SHIPPER'S ROUTING INSTRUCTIONS IN THIS CASE, THE CARRIERS WERE UNDER A DUTY TO SO INFORM THE SHIPPER AND SEEK FURTHER INSTRUCTIONS.

THE CASE OF UNITED STATES GYPSUM COMPANY V. BOS FREIGHT LINES, INC., 63 M.C.C. 212, COVERED A SITUATION IN WHICH THE DEFENDANT MOTOR CARRIER TRANSPORTED OVER ITS OWN LINE FROM ORIGIN TO DESTINATION A SHIPMENT OF PULPBOARD ON AN UNROUTED BILL OF LADING AND COLLECTED CHARGES COMPUTED ON THE BASIS OF THE CLASS RATE. AT THE TIME OF MOVEMENT, THE DEFENDANT CARRIER PARTICIPATED IN A LOWER COMMODITY RATE WHICH APPLIED VIA A JOINT- LINE ROUTE COMPRISED OF THE LINES OF THE DEFENDANT AND A CONNECTING CARRIER. THE COMMISSION HELD THAT THE CARRIER SHOULD HAVE SELECTED AND TRANSPORTED THE SHIPMENT OVER THE ROUTE VIA WHICH THE COMMODITY RATE APPLIED, THAT ITS FAILURE TO DO SO WAS AN UNREASONABLE PRACTICE, AND THAT IT WAS UNDER A CLEAR DUTY TO PROVIDE THE TRANSPORTATION AT THE JOINT-LINE COMMODITY RATE HELD OUT TO THE PUBLIC IN THE APPLICABLE TARIFF.

FOR THE REASONS GIVEN ABOVE, THE GOVERNMENT WAS ENTITLED TO THE BENEFIT OF THE JOINT THROUGH RATE OF $3.24 PER 100 POUNDS IN THIS CASE. WHICH CARRIER IN THE ACTUAL ROUTE OF MOVEMENT WAS RESPONSIBLE FOR MISROUTING THE SHIPMENT SEEMS TO BE IMMATERIAL TO THE SHIPPER UNDER THE PARTICULAR FACTS INVOLVED IN THIS CASE. THE TRANSPORTATION CHARGES WERE CLAIMED BY, AND PAID TO, THE LAST CARRIER IN THE ACTUAL ROUTE OF MOVEMENT, AND THIS WAS CONSISTENT WITH THE PROVISIONS OF CONDITION NO. 1 ON THE BACK OF THE GOVERNMENT BILL OF LADING. THE GOVERNMENT BILL OF LADING WAS SURRENDERED TO THE DELIVERING CARRIER AND THAT CARRIER USED THE BILL OF LADING TO SUPPORT ITS CLAIM FOR CHARGES. THUS, THE CARRIER WHICH CLAIMED AND RECEIVED PAYMENT OF THE TRANSPORTATION CHARGES HAD IN ITS POSSESSION THE EVIDENCE OF THE MISROUTING OF THE SHIPMENT AND OF THE RIGHT OF THE SHIPPER TO THE BENEFIT OF THE JOINT THROUGH RATE. IN THE DISTRIBUTION OF THE THROUGH REVENUE AMONG THE INTERESTED CARRIERS, THE DELIVERING CARRIER HAD THE MEANS OF PROTECTING THE REVENUE OF THOSE CARRIERS INNOCENT OF MISROUTING THE SHIPMENT AND ASSESSING ANY SHORTAGE IN REVENUE AGAINST THE CARRIER GUILTY OF THE MISROUTING.

YOU SUGGEST IN YOUR LETTER OF NOVEMBER 17, 1955, THAT THE GOVERNMENT PAY YOU THE AMOUNT OF YOUR CLAIM AND THEN FILE A CLAIM FOR THE RECOVERY OF THE SAME AMOUNT AGAINST ASSOCIATED TRANSPORT, THE CARRIER INDICATED BY YOU AS BEING GUILTY OF THE MISROUTING. HOWEVER, NEITHER THE GOVERNMENT NOR ANY OTHER SHIPPER SEEMS TO BE REQUIRED TO BECOME A PARTY TO SUCH CIRCUITY OF ACTION.

THE CASE OF GALVESTON, HOUSTON AND SAN ANTONIO RAILWAY COMPANY V. LYKES BROS., 294 F. 968, INVOLVED A SITUATION IN WHICH THE INITIAL CARRIER ISSUED AN UNROUTED BILL OF LADING AND THEN MISROUTED THE SHIPMENT. THE DESTINATION CARRIER COLLECTED CHARGES FROM THE CONSIGNEE WHICH WERE BASED ON AN ERRONEOUS RATE AND THEN SOUGHT TO RECOVER BY COURT ACTION THE RATE APPLICABLE VIA THE ACTUAL ROUTE OF MOVEMENT. THE COURT REFUSED TO ALLOW THE DESTINATION CARRIER TO COLLECT ANY CHARGES IN EXCESS OF THOSE APPLICABLE VIA THE LOWEST-RATED ROUTE--- THE ROUTE OVER WHICH THE INITIAL CARRIER SHOULD HAVE FORWARDED THE SHIPMENT. ANOTHER CASE THAT SEEMS TO BE VERY MUCH IN POINT IS LANCASTER V. SCHREINER, 212 S.W. 19. IN THAT CASE THE INITIAL CARRIER MISROUTED THE SHIPMENT AND ON ARRIVAL AT THE BILLED DESTINATION THE DELIVERING CARRIER COLLECTED FROM THE CONSIGNEE THE CHARGES THAT WOULD HAVE BEEN PROPER OVER THE ROUTE OF MOVEMENT HAD THE SHIPMENT NOT BEEN MISROUTED. SUBSEQUENTLY, THE DESTINATION CARRIER SUED THE SHIPPER FOR THE DIFFERENCE BETWEEN THE CHARGES COLLECTED AND THE CHARGES APPLICABLE VIA THE ACTUAL ROUTE OF MOVEMENT. THE COURT SAID:

"THE PLAINTIFF HERE CONCEDES THAT IF DEFENDANT IS COMPELLED TO PAY THE EXCESS SUED FOR IN THIS CASE HE CAN RECOVER THE SAME AGAINST THE CARRIER OR CARRIERS GUILTY OF MISROUTING THIS SHIPMENT. ITS CONTENTION IS THAT, ON ACCOUNT OF THE RIGID CONDITIONS OF THE INTERSTATE COMMERCE ACT, THE PLAINTIFF MUST SUE FOR AND DEFENDANT MUST PAY THE AMOUNT OF THE COMBINED LOCAL RATES OF THE ROUTE OVER WHICH THE SHIPMENT WAS ACTUALLY SENT, THOUGH BY NO FAULT OF THE SHIPPER, AND THE SHIPPER MUST THEN IN TURN SUE FOR AND RECOVER THE EXCESS WHICH HE IS THUS FORCED TO PAY FROM THE OFFENDING CARRIER. WE SEE NO REASON, HOWEVER, WHY THE PLAINTIFF, IF IT HAS NOT RETAINED ITS OWN CHARGES IN FULL, AS TO WHICH WE ARE NOT ADVISED, SHOULD NOT ITSELF SUE SUCH OFFENDING CARRIER TO ADJUST SUCH DIFFERENCE. * * * WHY SHOULD PLAINTIFF BE ALLOWED TO RECOVER FROM DEFENDANT FOR THE BENEFIT OF THE OFFENDING CARRIER THE VERY AMOUNT WHICH SUCH OFFENDING CARRIER MUST REFUND TO DEFENDANT? WE SEE NO REASON FOR TWO SUITS WHERE ONLY ONE, IF ANY, IS NEEDED. THE CASE IS THE SAME AS IF THE SHIPPER ON ASCERTAINING THE THROUGH RATE AND DESIGNATING THE PROPER ROUTE HAD PAID THE INITIAL CARRIER THE CORRECT AMOUNT OF CHARGES FOR THE THROUGH SHIPMENT. THE INITIAL CARRIER WOULD THEN BE RESPONSIBLE FOR THE THROUGH SHIPMENT, THOUGH PART OF THE ROUTE WAS OVER A CONNECTING CARRIER. THE CONNECTING CARRIER BECOMES IN A MEASURE AT LEAST THE AGENT OF THE INITIAL CARRIER TO COMPLETE THE SHIPMENT * * * AND THERE IS SUCH CONTRACTUAL RELATION BETWEEN THE TWO CARRIERS THAT THE CONNECTING CARRIER COULD HOLD THE INITIAL CARRIER FOR ITS LAWFUL SHARE OF FREIGHT CHARGES. * * * WE SEE NO REASON, THEREFORE, WHY PLAINTIFF, IF ANYTHING IS YET DUE, SHOULD NOT LOOK TO THE INITIAL OR PRECEDING CARRIER FOR ANY REDRESS DUE IT RATHER THAN TO SEEK TO COLLECT FROM DEFENDANT FOR THE BENEFIT OF THE OFFENDING CARRIER MONEY WHICH MUST BE AGAIN RETURNED TO THE DEFENDANT.'

ACCORDINGLY, SINCE THERE APPEARS TO BE NO LIABILITY RESTING UPON THE GOVERNMENT FOR THE PAYMENT OF ANY EXCESS CHARGES RESULTING FROM THE MISROUTING OF THE SHIPMENT BY ONE OF THE CARRIERS IN THE ROUTE OF MOVEMENT, AND NO DUTY ON THE PART OF THE GOVERNMENT TO PAY ADDITIONAL CHARGES TO ONE CARRIER AND THEN SEEK TO RECOVER THE SAME CHARGES FROM ANOTHER CARRIER, THE PRIOR DECISION IS AFFIRMED.